Terms and condition

GENERAL TERMS AND CONDITIONS HDB

1. Scope of the general terms and conditions

1.1. All contractual, precontractual and extracontractual legal relationships, both current and in the future, between the limited liability company “HUBERT DE BACKER”, with registered office at 9140 Temse, Laagstraat 59, VAT BE 0441.075.925, RPR/RPM Ghent, department Dendermonde (hereinafter “HDB”), and the Customer shall be governed by (in descending hierarchical order):

the HDB customer agreement, the special conditions for customized moulds, the quality agreement or any other written agreement between HDB and the Customer;

these terms and conditions (hereinafter “T&C”);

Belgian law.

1.2. Within the framework of this agreement, products need to be interpreted as including both products and moulds.

1.3. By placing an order or entering into an agreement, the Customer acknowledges having taken note of these T&C, and thereby accepting them.

1.4. These T&C shall always take precedence over the terms and conditions of the Customer, even if they state to be the only valid terms.

1.5. If HDB fails to require strict application of any provisions of these T&C, this cannot be considered a tacit waiver of these rights.

1.6. The invalidity of one or more provisions of these T&C or any part thereof shall not affect the validity and enforceability of the other clauses and/or the remainder of the provision in question. In case of invalidity of one or more provisions of these T&C, HDB and the Customer shall negotiate in order to replace the invalid provision by an equivalent provision in accordance with the spirit of these T&C. Should HDB and the Customer not reach an agreement, the competent court can mitigate the invalid provision to what is (legally) permitted.

2. Forecast

The Customer undertakes to provide HDB with a forecast of the products to be purchased by the Customer.

Parties agree that each forecast provided shall constitute a binding forecast of the Customer’s projected requirements for the product, unless when the Customer provides HDB timely with sufficient documents and argumentation which proofs why the forecast could not be met.

3. Order process

3.1. Offer

3.1.2. All offers from HDB are entirely non-binding, and may only be regarded by the Customer as an invitation to place an order.

Weights, dimensions, capacities, prices, performance, colours and other information which appears in the catalogues, brochures, mailings, pricelists or advertisements are merely an indication, and are non-binding for HDB.

3.1.2. An offer is only valid for the specific order to which it relates and only for the duration as indicated thereon, however never longer than 90 days after reception of the offer. Offers only comprise the goods that are specifically stated in the offer.

3.2. Purchase order

3.2.1. An agreement is only established legally after written order-confirmation by HDB, or as soon as HDB begins the execution of the order.

Agreements made with agents and/or representatives of HDB will only be valid after written confirmation by HDB.

3.2.3 The Customer shall, be responsible for:

Ensuring the accuracy of the purchase order;

Providing HDB with any information which is necessary to enable HDB to fulfil the purchase order;

Submitting the purchase order timely, taking into account the lead times, as agreed upon between parties, which are to be considered as merely indicative (hereinafter the “Lead Times”).

3.2.4. Each purchase order shall be submitted by the Customer electronically and shall specify at least the following information:

The quantity of the products;

If applicable, the type(s) of products ordered;

The desired date of delivery;

The address of delivery.

3.3. Order confirmation

3.3.1. Acceptance of a purchase order shall be subject to the availability of all information HDB requires for the fulfilment of the purchase order.

If the ordered quantity of the products exceeds the forecast (cfr. Article 2), HDB shall make all reasonable efforts to deliver the ordered quantity, without making any guarantee.

3.3.2. In case HDB is not able to fulfil the order for whatsoever reason, it will inform the Customer thereof timely.

3.3.3. Orders are non-binding without a written order-confirmation from HDB, which the latter shall provide to the Customer within a reasonable time but in any case not later than fifteen (15) working days upon receipt of the purchase order.

3.3.4. Each party shall use the relevant purchase order number in all subsequent correspondence.

3.4. Modification of the agreement

3.4.1. In case HDB is not able to fulfil the order for whatsoever reason, it will inform the Customer thereof timely.

3.4.2. Any changes or additions after the issuance of a written order confirmation are only valid after written agreement of both parties and will automatically result in a lapse of the expected shipment date.

The Customer shall be entitled to cancel the order in writing, when such cancellation notice is received by HDB at least 3 days before the expected shipment date, as foreseen in the order confirmation. In such case, HDB shall be entitled to claim compensation from the Customer for all costs incurred by HDB.

4. Manufacturing of the products

4.1. The products shall be manufactured by HDB making use of (i) models and tools and (ii) its own developed software.

The purchase orders, issued by the Customer in accordance with Article 3 and accepted by HDB;

Where applicable, the DMF (‘Druk Master File’); and

Any other written instructions agreed between parties for a specific order.

4.3. The Customer at its turn shall purchase and sell the products in its own name and on its own behalf.

4.4. In the event that any of the materials used by HDB in the manufacturing of the products becomes unavailable, HDB shall propose the Customer alternative materials for use in manufacturing the products.

4.5. Parties shall determine in mutual written agreement whether the use of such alternative materials is acceptable, and whether an adjustment of the price or other terms shall occur as a result of such a change.

5. Price

5.1. The unit price for each product shall be set forth in HDB’s pricelists.

5.2. HDB reserves the right to review its prices on an annual basis and shall notify the Customer thereof at least three (3) months prior to the moment the new prices become effective.

5.3. All prices are exclusive import duties, VAT, and any similar sales tax, packaging, labelling, insurance, freight and other costs and expenses. Thus this needs to be paid by the Customer in addition to the sales price.

6. Payment

6.1. All payments shall be made in Euro, or in the currency specified in the contract. All invoices shall always be payable in full within 30 calendar days after the invoice date. Invoices are payable by bank transfer to the bank account specified on the invoice, without any deductions.

6.2. HDB reserves the right to request a deposit, full payment or a bank guarantee before proceeding to carry out the contract. If the Customer refuses to accept this request, HDB reserves the right to cancel the whole order or a part thereof, even if all or a part of the goods have already been dispatched.

6.3. If the delivery takes place in parts, each shipment shall be invoiced separately.

6.4. Invoices may only be legitimately disputed by the Customer in writing by registered letter within 7 days following the invoice date, mentioning: the invoice date, the invoice number and detailed reasons. Such dispute does not discharge the Customer from its obligation to pay.

6.5. The unconditional payment of part of the amount of the invoice implies the explicit acceptance of the invoice.

6.6. Partial payments shall first be allocated to the collection expenses, then to the indemnity, the accrued interest and finally to the outstanding principal, whereby priority is allocated to the oldest outstanding principal.

7. Late payment

7.1. Any amount that remains fully or partially unpaid on the due date will automatically and without prior notice be increased by a default interest of 1 % per month overdue, whereby each started month will be considered as a whole month.

7.2. The amount due will also be automatically increased by a fixed compensation equal to 25 % of the invoice amount, with a minimum of € 150.00 (excl. VAT) by way of lump sum damages, without prejudice to HDB’s right to claim higher compensation.

7.3. If the Customer continues to fail to pay to HDB one or more outstanding claims, HDB reserves the right to immediately suspend any further deliveries and to consider all other pending purchase orders cancelled, without any notice of default being required.

7.4. This will also result in all other invoices of HDB immediately becoming due and payable, even if they have not yet fallen due, and all permitted payment conditions will cease to apply. The same applies in the event of an imminent bankruptcy, judicial or amicable dissolution, suspension of payment, as well as any other fact showing that the Customer is insolvent.

8. Electronic billing

By placing an order, the Customer expressly agrees to the use of electronic billing by HDB, unless otherwise agreed in writing between the parties.

9. Delivery dates

9.1. The specified delivery dates are merely indicative. Exceeding the foreseen delivery dates cannot give rise to the termination, cancellation or dissolution of the agreement at the expense of HDB, or to substitution or any other penalty or damages of any kind whatsoever. Exceeding the delivery date shall not discharge the Customer of his obligations.

9.2. Amendments to the order will automatically invalidate the scheduled delivery dates.

9.3. In the case of a stipulation that the Customer should pay the order (in full or partially), or submit a bank guarantee before HDB is obliged to carry out the contract, late payment or late submission of the bank guarantee will automatically invalidate the scheduled delivery dates.

9.4. The delivery date can only be established after all the required information and input have been provided to HDB by the Customer.

9.5. Under no circumstances is HDB liable for delays in the delivery caused by the failure of the suppliers of HDB, the Customer or any other third party to meet their obligations.

10. Delivery and storage

10.1. All deliveries will be made Ex Works (Incoterms 2010) to the Customer’s registered office, or any other location as designated by the Customer in the purchase order. This implies that the cost of delivery shall always be borne by the Customer and the risk of damage/vandalism/loss of the products is passed on to the Customer as soon as the transport of the products commences.

10.2. When the Customer is not able to accept the delivered goods on the date of delivery, HDB reserves the right to claim a storage fee a .

10.3. The Customer expressly acknowledges that no all-risks cargo insurance will be taken out for its benefit. Thus the transport shall be merely covered by the carrier’s standard cargo insurance.

10.4. HDB reserves the right to make partial deliveries of any purchase order.

11. Intellectual property rights

11.1. The Customer explicitly acknowledges that HDB shall own and retain all intellectual property rights with respect to:

All plans, designs, models, drawings, samples and photographs with respect to the mould(s) (non-limitative) used by HDB for the manufacturing of the products;

The software used by HDB to operate the mould(s) for the manufacturing of the products;

Each product manufactured under the agreement.

11.2. All materials, inventions, know-how, trademarks, information, data, writings, technical studies, plans, software documents of whatever kind and other property in any form whatsoever (non-limitative), which is provided by HDB to the Customer, or which is used by HDB with respect to the performance of its obligations hereunder, and which was owned by HDB prior to the commencement of the agreement shall remain the sole property of HDB.

12. Non-conformity and visible defects

12.1. Upon receipt of the products-, the Customer is obliged to carry out an initial verification involving, among other things, quantity and weight of the products, conformity of the delivery, visible defects, correct location(s).

12.2. The Customer is obliged to inform HDB in writing of any immediately visible defect or non-conformity, under penalty of forfeiture, within 48 hours after delivery and at least before the products are used, installed, processed and/or sold.

12.3. If no complaints are made within this period, the Customer is deemed to have approved and accepted the delivery.

13. Hidden defects

13.1. Within the limits of the following provisions, HDB undertakes to cover the products for hidden defects which appear within 6 months after the date of delivery.

13.2. The Customer must inform HDB of hidden defects by registered letter not later than 48 hours after they have been detected and such notice must be given before the shell life of the products expires.

13.3. Under penalty of disallowance of the claim, the Customer:

Must be able to prove that it has stored the products correctly both before and after detection;

Is obliged, after detection of the defect, to immediately stop using the products concerned and, furthermore, do everything that is reasonably possible to prevent (further) damage;

Is obliged to assist HDB as much as possible with its investigation of the claim

13.4. HDB cannot be held liable, nor does any guarantee cover:

Defects caused by improper use by the client of the customer and/or the end-user;

13.5. Upon receipt of a claim by the Customer, HDB undertakes within a period of 30 days following the receipt thereof to inform the Customer about the validity of the claim and, when applicable, the actions it will take.

13.6. Generally, HDB is not obliged to provide any warranty or assume any liability if the Customer fails to comply (properly or in time) with the provisions in this article. If the Customer disassembles, repairs or performs other work on the products, or has them performed, without the prior written permission of HDB, all claims under this warranty will lapse.

14. Safeguards by HDB

14.1. The safeguards offered by HDB to the Customer in the event of a valid complaint concerning a visible and/or hidden defect as set forth in the articles above, will be limited at the discretion of HDB to (full of partial): (i) replacement; or (ii) return of the products concerned and providing the Customer with a credit note. Return of the products, in case of point (ii), requires the prior approval by HDB. In the absence of this approval, all return shipments will be refused and the costs arising from this shall be passed on to the Customer.

15. Product complaints

The Customer shall be responsible for handling all complaints and inquiries related to the products/customized mould made by the (end-)users of the products.

16. Recall of the products

16.1. If HDB becomes aware of any unexpected adverse effect associated with the use of the product, or any event or circumstance that might necessitate a recall of a product, HDB shall notify the Customer immediately.

16.2. In case of a recall, the Customer shall co-operate with HDB in devising and implementing an appropriate course of action. Without prejudice to the above, the handling of a recall shall be at HDB’s sole discretion.

16.3. If a recall is found to be the fault of HDB, HDB shall decide at its own discretion to (i) refund the price paid by the Customer for the recalled products or (ii) replace the recalled products with a new delivery of products. In any case HDB shall not be held to reimburse the Customer for any expense incurred as a result of the recall.

17. Liability

17.1. With the exception of the indemnification by HDB due to non-conformity or visible/hidden defects as set forth above, HDB’s liability shall be limited to the lower of the following two amounts: (i) the invoice value of the products delivered by HDB, or (ii) the amount of the payment of the insurance policies entered into by HDB and in any case be limited to the liability mandatory under Belgian law.

17.2. The product liability of HDB, as manufacturer of the products, shall in any case be limited to the following types of damage in the event of any damage caused by a defect in its product:

Physical damage to persons (caused by any person using the product);

Damage caused to goods, after deduction of a franchise of 500 euro, and insofar the goods were intended for and mainly used by the victim in his/her private environment, with the exception of damage caused to the defective product itself.

Notwithstanding the foregoing, HDB shall, however, not be liable if:

The damage was caused through the fault of the victim or a person for whom the victim is responsible;

The damage was caused by a defect that did not exist at the time the product was put into circulation, or at a time it was impossible to detect the existence of the defect.

17.3. Under no circumstances, shall HDB be liable for delays concerning the deliveries (incl. additional costs for the Customer resulting from this), regardless of who is responsible for such delay.

17.4. The intended use of the products by the Customer or by a third party designated by the Customer is determined under the full responsibility and at the risk of the Customer. HDB cannot be held liable in any way for any direct or indirect damage resulting from this intended use.

17.5. Neither can the Customer claim indemnification by HDB:

For indirect damage (including but not limited to loss of income and damage to third parties or any consequential damage caused by the products of HDB;

For defects that have caused directly or indirectly by an act on the part of the Customer or a third party, irrespective of whether they are caused by and error or negligence;

For damage caused by using the products for a different purpose than the purpose for which they have been developed or are intended;

Additional damage caused by continued use by the Customer after a defect has been detected;

Damage caused by incorrect storage of the products;

Damage caused by non-compliance with any advice that may be given by HDB, which HDB always provides on a discretionary basis.

17.6. HDB’s liability can only be invoked by the Customer directly and not by a third party.

18. Indemnification by the Customer

The Customer (i) indemnifies HDB for all losses, damages, fines, costs and expenses (incl. legal fees) arising out of or relating to third party claims due to the use by the Customer of the products not in conformity with the agreement and (ii) defends HDB against all claims and proceedings, including third-party claims and proceedings arising out or resulting from, any act or omission of the Customer in violation with its obligations under the agreement and/or any other legal obligation of the Customer.

19. Force majeure & Hardship

19.1. Usual events of force majeure or hardship include: all circumstances that were reasonably unforeseeable at the time the agreement was concluded and that are unavoidable, and which prevent HDB from performing its obligations under the agreement, or which would make the performance more difficult, financially or otherwise, than it would normally be the case (including but not limited to fire, flood, strikes, labor disputes, or other industrial disturbances war, embargoes, threat and acts of terrorism, legal restrictions, riots, insurrections, governmental regulations).

19.2. Whenever HDB is affected by force majeur and/or hardship, it shall not be deemed to be in breach of the agreement, or otherwise be liable to the Customer, by reason of any delay in the performance of its obligations to the extent that the delay or non-performance is due to any force majeure and/or hardship of which it has notified the Customer within a reasonable term following confrontation therewith.

19.3. If the situation of force majeure and/or hardship by which HDB is affected, continues for an uninterrupted period of more than 2 consecutive months, HDB shall be entitled to terminate the agreement.

20. term of the agreement

20.1. Term

20.1.1. The agreement shall continue in effect for an indefinite duration.

20.2. Termination of the Agreement by notice

20.2.1Both parties have the right to terminate the agreement upon prior written notice of six (6) months.

20.2.2. The notice of termination must be done by registered letter, containing the start and the end of the notice period, which has effect the third day after its sending date.

20.3. Termination of the Agreement due to material breach or exceptional circumstances

20.3.1. Notwithstanding any provisions to the contrary in these T&C, both parties are entitled to terminate the agreement at any time and without legal intervention in the event:

A party materially breaches any of the provisions of the agreement and, notwithstanding a registered letter from the other party to refrain from such a breach and to rectify the situation, fails to comply with such a request within twenty (20) days following the receipt of such a registered letter, without prejudice of the other party to claim from the defaulting party an additional compensation as a result of this contractual breach;

Of exceptional circumstances which make it impossible to continue any professional cooperation between HDB and the Customer.

Parties agree that the following circumstances should be considered as exceptional circumstances:

If a party ceases its payments, files a declaration for bankruptcy, is declared bankrupt, enters into a liquidation or similar proceedings or is liquidated;

Every circumstance which affects the ability of one of the parties to comply with its contractual obligations in a thorough manner or where it cannot reasonably be expected that the party fulfils its contractual obligations;

Force majeure or hardship which continues for an uninterrupted period of more than consecutive two (2) months following the moment on which HDB, which is confronted with this force majeure, notifies the Customer thereof.

20.4. Consequences of termination of the agreement

Upon termination of the agreement, each party will return to the other party all documents, files and any material, which was at its disposal, either self-made or received from the other party.

21.4.2. Parties shall determine the impact of termination for whatsoever reason for pending orders between them.

21.4.3. Articles 23 and 24 shall survive and continue in full force and effect in accordance with their terms, notwithstanding the expiration or termination of this agreement for whatsoever reason.

The termination of the agreement, for whatsoever reason, shall not prejudice the rights acquired by each party.

21. Assistance and information

21.1. For the purpose of the successful performance of the purchase orders, the Customer shall provide all reasonable assistance to HDB, including but not limited to all information, documents, designs, plans, technical studies and support reasonably necessary or useful to execute the purchase order.

21.2. Parties will inform each other about any difficulty which may disrupt the punctual/correct/etc. performance of the purchase order.

22. Exclusivity

HDB shall towards the Customer not be bound by any exclusivity.

23. Confidentiality

23.1. The Customer shall treat all received information, whether written or orally disclosed by HDB, as confidential information and shall not disclose such information to any third party without the HDB’s prior written consent.

23.2. This obligation shall survive the relationship between parties for 5 years. The Customer shall ensure that its directors, employees, agents and other intermediaries are bound by a similar duty of confidentiality.

24. Netting

In accordance with the stipulations in the Law on Financial Securities of 15 December 2004, HDB and the Customer will automatically and legally mutually set off and settle all currently existing and future debts. This offsetting of debt will in any case be opposable to the receiver and the other concurrent creditors, who will therefore not be able to oppose the offsetting implemented by the parties.

25. Retention of ownership

25.1. HDB retains the ownernership of all products delivered to the Customer for as long as the Customer has not fully paid the price, costs, interests and all other accessories relating to the purchase order.

25.2. Consequently, as long as the price is not fully paid by the Customer, the latter shall not be entitled to sell, to convert, transfer and/or encumber the products nor dispose them. In the event the Customer resells one of more products, the Customer transfers all outstanding claims, arising from this resale, to HDB. The Customer undertakes to inform HDB immediately of any seizure laid by a third party on products which have not been fully paid.

26. Processing of personal data

The Customer gives HDB the permission to include the personal data provided by the Customer in a database. This data can be used for the purpose of information and for conducting promotion campaigns in connection with the goods offered by HDB within the context of the contractual relationship between HDB and the Customer.

The Customer may ask to consult and update his personal details at any time. If the Customer no longer wishes to receive commercial information from HDB, the Customer should inform HDB accordingly.

27. Jurisdiction & Governing Law

In case of any dispute regarding the implementation and/or interpretation of these T&C, the territorially competent courts at the location of the registered office of HDB will have exclusive jurisdiction.

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